JENNIFER SONSON, INDIVIDUALLY AND AS TRUSTEE; UBBERHURST OBERBORG, INC., A FLORIDA CORPORATION, INDIVIDUALLY AND AS TRUSTEE, AND WELLINGTON, VIADUCT, WELLINGTON, INC., AS TRUSTEE, APPELLANTS,
v.
MILDRED JEANNE HEARN AS TRUSTEE OF THE MILDRED JEANNE HEARN REVOCABLE LIVING TRUST DATED NOVEMBER 2, 1999, APPELLEE

Fla. 4th DCA | 2009-07-22
No. 4D08-2799
POLEN and HAZOURI, JJ., concur.
17 So. 3d 745 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellants appealed the trial court's dismissal of their quiet title action with prejudice for failing to comply with a court order to appear for depositions. The Fourth District Court of Appeal reversed and remanded, holding that while dismissal can be appropriate for discovery violations, the trial court must first determine whether the plaintiffs or their attorney was responsible for the non-compliance and apply the appropriate legal standard.


Holding

The court reversed and remanded, holding that although dismissal is the most severe sanction for discovery misconduct and may be appropriate without an explicit finding of prejudice, the trial court must first determine whether the plaintiffs or their attorney was responsible for the non-compliance. If the attorney is responsible, a different set of factors must be applied, and less severe sanctions should be considered before dismissal.


Headnotes

[1] Dismissal of an action with prejudice is the most severe sanction and should only be employed in extreme circumstances.

[2] A trial court must determine whether a client or their attorney is responsible for non-compliance with a discovery order before imposing sanctions.

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Key Quotes

“A dismissal under rule 1.380 is 'the most severe of all sanctions which should be employed only in extreme circumstances.'”

Establishes the high threshold for using dismissal as a sanction for discovery violations.

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Facts & Procedural History

Jennifer Sonson and other plaintiffs filed a quiet title action against Mildred Jeanne Hearn regarding two parcels of land in St. Lucie County. Over m…

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Opinion of the Court
CIKLIN, J.

CIKLIN, J.

Appellants, the plaintiffs below, appeal the trial court’s final judgment dismissing their action with prejudice for failing to comply with a court order compelling attendance at a deposition. Because the trial court did not determine whether the plaintiffs or their attorney was responsible for the non-appearance and because the dismissal was not based on competent substantial evidence, we reverse and remand for further proceedings.

This case arose from a dispute regarding the ownership of two parcels of land located in St. Lucie County. Jennifer Son-son and other plaintiffs filed suit against Mildred Jeanne Hearn, as trustee to quiet title. Sonson relied on one chain of title in the complaint, while Hearn provided a different chain of title in the answer. Hearn’s answer also asserted six affirmative defenses.

*747On numerous occasions over the course of many months, Hearn’s attorney attempted in vain to schedule depositions of Jennifer Sonson, individually and Stephen Sonson as representative of both plaintiff corporations. This recalcitrance culminated in an April 17, 2008 court order directing both individuals to appear for a deposition on April 24, 2008. When neither appeared, Hearn — through her attorney— moved to dismiss the cause of action with prejudice under Florida Rule of Civil Procedure 1.380.

At the hearing on the motion to dismiss, Hearn’s attorney recapped his efforts to schedule the Sonsons’ depositions and introduced into evidence certificates of nonappearance indicating that the Sonsons failed to appear for their court-ordered deposition on April 24, 2008 as well as various letters sent by Hearn’s attorney to the Sonsons’ attorney. Hearn’s attorney reminded the trial court that, at a previous hearing, the Sonsons’ attorney stated he had not been in touch with Jennifer Son-son and did not know where she was and further that Stephen Sonson indicated he was not coming to the deposition.

The Sonsons did not appear at the hearing on the motion to dismiss. Instead, their attorney argued that dismissal would not be appropriate because Hearn had not demonstrated any prejudice. Additionally, the Sonsons’ attorney argued that the case was a quiet title action which would be based on documentary evidence and “we don’t think there’s a lot to do about any sort of testimony.”

Despite the trial court’s repeated insistence of some type of evidence to support either side’s position at the hearing on the motion to dismiss, both lawyers offered nothing but a couple of certificates of nonappearance, copies of lawyer letters and other unsworn “statements of fact” to advance their respective arguments.1

Following the hearing, the trial court entered final judgment dismissing the action with prejudice, holding:

[The Sonsons’] failure to appear ... at the scheduled depositions, which were court-ordered, evidence a willful and contumacious disregard of the Court’s authority, that such actions were deliberate and intentional and were done in bad faith and were done in willful disregard of and gross indifference to the Court’s authority....
The Court further finds that such deliberate and contumacious disregard of the Court’s authority warrants the severest of sanctions, which include but are not limited to dismissal of the [Sonsons’] action with prejudice.

On appeal, the Sonsons argue that the trial court abused its discretion in dismissing their action without finding that their failure to comply with the lower court’s order prejudiced Hearn.

We do not agree with the Sonsons’ argument that a trial court is always required to find prejudice before dismissing an action for all types of discovery misconduct. Although this court has stated “[t]he emphasis should be on the prejudice suffered,” Fisher v. Prof'l Adver. Dirs. Co., *748955 So.2d 78, 80 (Fla. 4th DCA 2007), recognition and enforcement of the court’s authority to enter orders pertaining to discovery remains vital and equally important.

Nonetheless, the trial court’s dismissal appears premature. A dismissal under rule 1.380 is “the most severe of all sanctions which should be employed only in extreme circumstances.” Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). Upon Hearn’s evidence that the Sonsons failed to appear at the court-ordered depositions, the trial court should have shifted the evidentiary burden to the Sonsons to address the alleged dereliction.2

If a deliberate failure to comply with the trial court’s order is attributable to the Sonsons, dismissal might be a proper sanction. See Mercer, 443 So.2d at 946 (“A deliberate and contumacious disregard of the court’s authority will justify application of the severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.”) (citations omitted); Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion.”).

However, where the attorney, and not the client, is responsible for the non-compliance, a different set of factors must be applied: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). “[I]f a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Id.

Our purpose in rendering this opinion is not to further burden an already overburdened trial bench. On the contrary, our decision is meant to affirm the authority of trial judges to deliver the paramount sanction of dismissal when warranted.

Reversed and remanded.

POLEN and HAZOURI, JJ., concur.


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Citator

Cited By

  • Kaufman v. FS Tenant Pool III Tr., 87 So. 3d 1228 (Fla. 4th DCA 2012)
    ….200(c).”). Failure to include a finding of such willful and contumacious behavior in its order dismissing the case with prejudice is an abuse of discretion by the trial court. Dedmon, 60 So. 3d at 587. Forum at Deer Creek cites to Sonson v. Hearn, 17 So. 3d 745 (Fla. 4th DCA 2009), to explain that this court should remand for further proceedings so the trial court can determine whether the inaction by Kaufman was willful and warranted dismissal. In Sonson, this court held that dismissal may be a proper san…
  • Covenant Tr. Co. v. The Guardianship OF Lillian Ihrman, 45 So. 3d 499 (Fla. 4th DCA 2010)
    …ersonal jurisdiction, the Second District, pursuant to Venetian Salami, reversed and remanded the case so the trial court could hold a limited evidentiary hearing on the minimum contacts issue to resolve the conflicting affidavits); Sonson v. Hearn, 17 So. 3d 745, 747 n. 1 (Fla. 4th DCA 2009) (citing Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982)) (unsworn statements by an attorney at a hearing do not establish facts upon which the trial court can rely). Therefore, the…
  • Arsali v. Deutsche Bank Nat'l Tr. Co., 82 So. 3d 833 (Fla. 4th DCA 2011)
    …ent by counsel to make factual determinations.” (citing Ordonez v. State, 862 So. 2d 927, 930 (Fla. 2d DCA 2004))). Moreover, unsworn statements by an attorney at a hearing do not establish facts upon which the trial court can rely. Sonson v. Hearn, 17 So. 3d 745, 747 n. 1 (Fla. 4th DCA 2009) (citing Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So. 2d 1015, 1017 (Fla. 4th DCA 1982)). Here, it appears the trial court summarily granted the bank’s motion to rescind the foreclosure sale without holding an ev…

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